Qualified Immunity Shields Police in Landlord–Tenant Disputes When Abandonment Under 9 V.S.A. § 4462 Is Not Clearly Established

Court: Supreme Court of Vermont (Three-Justice Panel Entry Order)
Case: Execusuite, LLC v. Mitchel Cable et al., No. 25-AP-097 (Sept. 5, 2025)
Appealed From: Superior Court, Windsor Unit, Civil Division (No. 23-CV-02816)
Disposition: Affirmed (summary judgment for defendants)

Precedential Note: The decision is an entry order of a three-justice panel and is “not to be considered as precedent before any tribunal.” It is nonetheless instructive about how the Vermont Supreme Court assesses qualified immunity in the specific context of police responses to landlord–tenant abandonment disputes under 9 V.S.A. § 4462.

Introduction

This case arises from a landlord–tenant conflict in Hartford, Vermont, that escalated into a civil-rights action under 42 U.S.C. § 1983 against four Hartford police officers. The owner-landlord, Execusuite, LLC, alleged that officers deprived it of the use of its apartment by insisting that a holdover tenant—who had stopped paying rent and moved most belongings out—remained in lawful possession. The landlord claimed a Fourteenth Amendment due-process violation based on the officers’ actions and statements that prevented re-letting the unit to a new tenant.

The central issues were twofold: (1) whether the tenant had “abandoned” the unit within the meaning of 9 V.S.A. § 4462, thereby giving the landlord an immediate right to recover possession and remove the tenant’s property; and (2) whether, even assuming a deprivation, the officers were protected by qualified immunity because the landlord’s alleged right to immediate possession was not “clearly established.” The Vermont Supreme Court affirmed summary judgment for the officers, holding that qualified immunity applied because, on the undisputed facts, it was not beyond debate that the tenant had abandoned the premises.

Summary of the Opinion

The Court affirmed the trial court’s summary judgment for the defendant officers. It held that the officers were entitled to qualified immunity because their actions did not violate “clearly established” rights of which they reasonably should have known. On the undisputed record, the tenant repeatedly asserted continuing possession, retained a key, objected when the landlord changed locks and removed belongings, and physically moved property back into the apartment. Given these facts, the Court concluded it was reasonable for the officers to determine that abandonment had not occurred—and, at a minimum, that the landlord’s contrary claim to immediate possession was not clearly established under existing law. Thus, the “good faith” prong of qualified immunity was satisfied, and the § 1983 claim failed as a matter of law.

Factual Timeline (Undisputed for Summary Judgment)

March 2019: Tenant leases the apartment from Execusuite.
March 2020: Lease expires; tenant holds over and stops paying rent.
Spring/Summer 2020: Landlord serves a notice terminating tenancy effective July 31, 2020.
June 7, 2020: Tenant removes most furniture/belongings but leaves about two carloads and maintains communication that he will move out “soon,” or by July 31.
By June 12: Landlord’s agents enter, clean/paint, and change locks; tenant objects, notes he hasn’t returned the key, and reaffirms intent to vacate by July 31.
Mid-June: Landlord rents the unit to a new tenant for a July 1 start.
June 23: Landlord removes the remaining items to storage.
June 29: Tenant returns and demands entry. Officers Cable and Ebbighausen respond and advise the landlord’s agent that the tenant remains in possession; tenant moves some belongings back in.
Later June 29: Landlord again removes belongings and changes locks. Tenant calls the police. Officers Clifford and Reyes respond and reaffirm tenant’s right of possession; tenant moves belongings back from storage.
July 4: New tenant attempts to move in, finds old tenant’s property, calls police. Officers Cable, Clifford, and Ebbighausen respond, again stating the tenant remains in possession. New tenant leaves; an officer warns the landlord’s agent about possible “false advertising.”
July 2020: Unit stands effectively unusable; landlord charges the holdover tenant rent and also charges the would-be July tenant rent and a “lease buyout fee.”
August 1: Landlord rents the unit to a different tenant.

Analysis

Procedural Posture and Standard of Review

The landlord filed a § 1983 suit in June 2023, alleging a Fourteenth Amendment due-process violation stemming from the officers’ role in keeping the tenant in possession and deterring the incoming tenant. The officers moved for summary judgment on qualified-immunity grounds. The trial court granted the motion, concluding that the undisputed facts did not establish abandonment as of June 7, 2020, and that the officers acted in good faith. On appeal, the Vermont Supreme Court reviewed the grant of summary judgment de novo, applying the familiar Rule 56 standard that there must be no genuine dispute of material fact and entitlement to judgment as a matter of law.

Precedents and Authorities Cited

Progressive N. Ins. Co. v. Muller, 2020 VT 76, ¶ 9, 213 Vt. 145: Articulates de novo review of summary judgment.
Zullo v. State, 2019 VT 1, ¶ 39, 209 Vt. 298: Recognizes § 1983 as a remedy for violations of federal rights by those acting under color of state law.
Nelson v. Town of Johnsbury Selectboard, 2015 VT 5, ¶ 63, 198 Vt. 277: Vermont’s three-part qualified-immunity framework: within scope of authority; good faith; discretionary acts. Also invokes the “beyond debate” clearly-established-rights standard. See id. ¶ 65.
Baptie v. Bruno, 2013 VT 117, ¶ 11, 195 Vt. 308: Defines “good faith” in the qualified-immunity context as not violating clearly established rights of which an official should have known.
Anderson v. Creighton, 483 U.S. 635, 640 (1987): U.S. Supreme Court’s “clearly established” standard—rights must be sufficiently clear that a reasonable official would understand the conduct violates that right.
JW, LLC v. Ayer, 2014 VT 71, ¶ 17, 197 Vt. 118: Upholds finding of no abandonment where tenants were still present when the sheriff came to execute a writ of possession; supports the proposition that physical presence/assertions of possession cut against abandonment.
Howard v. Mattell, No. 2005-465, 2006 WL 5849679, at *2 (Vt. July 1, 2006) (unpublished mem.): Persuasive authority that landlords are not justified in deeming property abandoned when informed of a tenant’s intent to move it and the tenant is making reasonable efforts.
9 V.S.A. § 4462: Vermont’s statutory definition and procedure for abandonment of residential units; allows removal of belongings and re-letting if abandonment criteria are met.

Legal Reasoning

The Court’s reasoning proceeds within the qualified-immunity framework as used in Vermont for § 1983 claims:

Scope of authority and discretion. The landlord did not dispute that the officers acted within the scope of their employment and were performing discretionary functions. Thus, only the “good faith” prong was in play.
Good faith = no violation of a clearly established right. Under Baptie and Anderson, officials act in good faith unless they violate a right so clearly established that every reasonable officer would understand the conduct violates that right.
Was the landlord’s asserted right to immediate possession “clearly established” under § 4462? The landlord’s theory was that the tenant had “abandoned” the unit by June 7, 2020, satisfying 9 V.S.A. § 4462(a)’s elements: (1) circumstances indicating the unit was no longer occupied as a full-time residence, (2) rent not current, and (3) reasonable efforts by the landlord to ascertain intent. The Court accepted that prongs (1) and (2) had indicators in the landlord’s favor (the tenant had removed most furniture and was in arrears), but emphasized robust, contemporaneous evidence that the tenant:
- repeatedly and explicitly stated he had not moved out and would remain until July 31;
- had not surrendered the key and objected to the landlord’s reentry and lock changes;
- affirmatively moved belongings back into the unit after police involvement; and
- remained physically connected to the premises through late June/early July.
This pattern mirrors JW, LLC (physical presence defeats abandonment) and Howard (expressed intent and ongoing efforts defeat abandonment), making it reasonable—indeed, prudent—for officers to conclude that abandonment had not occurred.
Even assuming the landlord’s reading of § 4462, the right wasn’t “beyond debate.” The landlord argued that the statute only required it to make “reasonable efforts” to ascertain the tenant’s intentions, which it did by asking. The Court found no authority supporting the notion that a landlord can deem the unit abandoned despite the tenant’s stated intention to remain. To the contrary, Vermont law “arguably suggests otherwise.” Thus, even if the landlord’s interpretation were correct, existing precedent did not place the answer “beyond debate,” and officers could not be charged with knowledge that their course of action violated the landlord’s rights.

Because the landlord’s asserted right to immediate possession was not clearly established on these facts, the officers acted in good faith. Qualified immunity therefore barred the § 1983 claim, and summary judgment for the officers was proper.

Impact and Implications

Doctrinal impact (even if nonprecedential): The entry order underscores several practical and legal points likely to influence future disputes and training, even if not binding precedent:

Police responses to civil landlord–tenant disputes. When faced with ambiguous abandonment claims, officers may rely on clear indicia of continuing possession—physical presence, retention of keys, stated intention to stay, and active maintenance of belongings—to conclude the tenant has not abandoned. In such circumstances, qualified immunity will typically protect officers from § 1983 liability.
Raising the bar for “clearly established” rights in property-use due-process claims. The Court’s application of the “beyond debate” standard makes it difficult for landlords to ground § 1983 damages claims in police decisions made amid unsettled landlord–tenant facts, especially where statutory abandonment criteria are not unequivocally met.
Signals to landlords and tenants.
- Landlords: Reliance on “abandonment” to bypass possession procedures remains risky when the tenant is still asserting possession. Ambiguity will usually weigh against a “clearly established” immediate right to exclude.
- Tenants: Clear, contemporaneous assertions of intent to remain, coupled with maintaining a presence and belongings, strongly undermine abandonment allegations.
Training and policy. Agencies may incorporate these factors into civil-standby protocols, emphasizing documentation of tenant statements, possession indicators, and avoidance of facilitating extra-judicial lockouts.

Complex Concepts Simplified

Qualified Immunity (QI): A defense shielding government officials from civil damages unless they violate a constitutional or statutory right that was clearly established at the time. The question is not whether the official was ultimately right, but whether the law made it obvious that the conduct was unlawful.
“Clearly Established” Right: A right is clearly established when precedent makes the unlawfulness “beyond debate” for the specific context at issue. General statements of law (e.g., “you cannot deprive property without due process”) are not enough; the contours must be concrete for the situation officials faced.
Good Faith (in QI): In Vermont’s formulation, officials act in good faith if they did not violate clearly established rights of which they reasonably should have known.
Discretionary vs. Ministerial Acts: Discretionary acts involve judgment or choice; ministerial acts are simple, prescribed duties. QI typically applies to discretionary acts.
Abandonment (9 V.S.A. § 4462): A unit is “abandoned” if three conditions are met: (1) facts suggest it’s no longer a full-time residence; (2) rent is not current; and (3) the landlord made reasonable efforts to ascertain the tenant’s intentions. Only upon abandonment may the landlord remove belongings and re-let. The tenant’s ongoing presence, possession of keys, belongings in the unit, and explicit statements of intent to remain weigh heavily against abandonment.
Holdover Tenant: A tenant who remains in possession after the lease ends. Absent lawful process or clear statutory grounds (like abandonment), holdover tenants generally retain possession until removal is accomplished through appropriate legal channels.
Summary Judgment: A procedural device to resolve a case without trial when the material facts are undisputed and the moving party is entitled to judgment as a matter of law. Appellate courts review grants of summary judgment de novo.

Key Precedents Applied to the Facts

Anderson v. Creighton anchors the “clearly established” analysis. Here, the specific context—tenant’s repeated assertions and actions evidencing continued possession—made the landlord’s claim to immediate possession anything but obvious.
Nelson and Baptie supply Vermont’s QI framework and define good faith through the clearly-established lens.
JW, LLC and Howard (unpublished) are the closest Vermont landlord–tenant analogs, both cutting against abandonment when tenants assert and act upon continued possession. Their combined effect makes the officers’ judgment at least reasonable, if not compelled.

Conclusion

The Vermont Supreme Court affirmed summary judgment for the officers in this § 1983 case, holding that qualified immunity applies where a landlord’s asserted right to immediate possession under the abandonment statute is not clearly established. The tenant’s active assertions of possession—retaining a key, objecting to lock changes, moving belongings back in, and stating an intent to remain through the termination date—made abandonment legally contestable. In such circumstances, officers who treat the tenant as remaining in possession act in good faith, defeating § 1983 liability.

Although the entry order is nonprecedential, it provides a clear, practical signal: when the facts surrounding alleged abandonment are mixed, and especially when a tenant’s words and conduct support continued possession, the law does not make a landlord’s contrary right to immediate possession “beyond debate.” Qualified immunity will therefore generally protect officers navigating these civil disputes. For landlords and tenants, the opinion underscores the importance of clear, documented intentions and the risks of unilateral self-help measures in the shadow of contested possession.

Key Takeaways

Qualified immunity turns on whether the right allegedly violated was clearly established in the specific context officers faced, not on ultimate correctness in landlord–tenant law.
Under § 4462, a tenant’s explicit, repeated statements of intention to remain, coupled with physical indicators of possession, strongly undermine any abandonment claim.
Police who, in good faith, treat such units as still occupied are unlikely to face § 1983 liability.
Entry orders are nonprecedential, but this one offers a practical blueprint for officers, landlords, and tenants in Vermont when abandonment is disputed.